The CJEU on professio iuris in succession matters and on the relationship with international agreements concluded with third States before the adoption of the European Succession Regulation

Yesterday (12 October 2023), the Court of Justice, asked by the Regional Court of Opole, Poland (Sąd Okręgowy w Opolu) to interpret Arts 22 and 75 of Regulation (EU) No 650/2012 (the European Succession Regulation – ESR), delivered its judgment on the case C-21/22, OP v. Notariusz Justyna Gawlica.

The dispute in the main proceeding arises when OP – a Ukrainian national residing in Poland where she co-owns an immovable property – requested a Polish notary to draw up a notarial will containing a clause under which the law applicable to her succession would be Ukrainian law. However, the notary refused to draw up such an act, because, in his/her view: (i) Art 22 of ESR, read in the light of its recital No 38, confers the right to choose the applicable law only on nationals of Member States of the European Union; and (ii) Art 37 of the 1993 Agreement between Poland and Ukraine on legal assistance and legal relations in civil and criminal matters – which takes precedence over the ESR (as per Art 75 ESR) and does not allow for a professio iuris – provides that the law applicable in matters of succession is the law of the State whose nationality the deceased possesses in the case of movable property, and the law of the State in which the property is situated in the case of immovable property. OP brought an action before the Regional Court of Opole (the referring court) against the notary’s refusal. The Court, seeking an interpretation of Arts 22 and 75 of ESR, decided to stay the proceedings and to refer a preliminary ruling to the Court of Justice.

In the judgment, the Court of Justice stated that Art 22 of Regulation No 650/2012 must be interpreted “as meaning that a third-country national residing in a Member State of the European Union may choose the law of that third State as the law governing his or her succession as a whole”. Moreover, Art 75 of Regulation No 650/2012 must be interpreted “as not precluding – where a Member State of the European Union has concluded, before the adoption of that regulation, a bilateral agreement with a third State which designates the law applicable to succession and does not expressly provide for the possibility of choosing another law – a national of that third State, residing in the Member State in question, from not being able to choose the law of that third State to govern his or her succession as a whole”.

On the European Succession Regulation and on professio iuris in succession matters, the readers of RDIPP may refer to:

Ilaria Viarengo, 2020, No 3, 559 ff;
Francesca C. Villata, 2019, no 4, 714 ff;
Domenico Damascelli, 2019, No 1, 45 ff;
Andrea Bonomi, 2019, No 1, 25 ff;
Jacopo Re, 2018, No 4, 978 ff;
Ilaria Queirolo, 2018, No 4, 870 ff;
Francesca Maoli, 2018, No 3, 676 ff;
Zeno Crespi Reghizzi, 2017, No 3, 633 ff;
Domenico Damascelli, 2017, No 1, 67 ff;
Peter Kindler, 2017, No 1, 12 ff;
Cristina Campiglio, 2016, No 4, 925 ff;
Luigi Fumagalli, 2015, No 4, 779 ff;
Fabrizio Vismara, 2014, No 4, 803 ff.;
Andrea Bonomi, 2013, No 2, 293 ff;
Andrea Bonomi, 2010, No 4, 874 ff.

Moreover, see, in our Book Series:

Patrizia De Cesari, Book No 54;
Jacopo Re, Book No 85;
Lenka Válková, Book No 87.